Globalization of Korean Antitrust Law: Upcoming Paper at ANU in Canberra

I am humbled that I have been invited to give my paper "Globalization of Korean Antitrust Law" at the Korean Studies Graduate Student Conference in Canberra in January.

US Decision on Anti-Competitiveness of Patent Settlements

This is an interesting case on the issue of the anti-competitiveness of patent settlements. Click on the link below to the Antitrust Law Blog:

http://www.antitrustlawblog.com/article-reverse-payment-patent-settlements-the-second-circuit-speaks-out.html

2000 US Horizontal Collaboration Guidelines

The "new" rule of reason under the US Horizontal Collaboration Guidelines is applicable to agreements between competitors in high-tech industries, although there is some discussion about the role of dynamic efficiencies. Carl Shapiro has argued that intellectual property law and antitrust law are not in conflict but are complementary in achieving dynamic efficiencies. It is worth examining the history of the rule of reason in the United States, because antitrust law has been thought of as achieving static efficiencies by the Chicago School. In particular, until the 1979 BMI decision of the US Supreme Court, the rule of reason had remained distinct from conduct such as prixe-fixing ancillary to joint ventures which had been held illegal per se. The BMI decision was the start of the development of a "truncated" rule of reason, which evolved through the 1986 NCAA decision and more recently the California Dental Association case. Eventually, the combination of these decisions led to the adoption of the 2000 US Horizontal Collaboration Guidelines. As high-tech industries increasingly become issues for antitrust, it is important for the "new" rule of reason to be adaptable to dynamic efficiencies; despite the problem of a criteria in relation to dynamic efficiencies, there have been some solutions proposed, in particular the consumer welfare test in relation to patent settlements proposed by Carl Shapiro. These principles could be introduced into Korea through the revision of the KFTC Horizontal Collaboration Guidelines which are somewhat out of date and have falled into disuse.

Guidelines of reviewing undue exercise of intellectual property rights

I found a slightly more detailed statement of the law in relation to high-tech cooperation in the Korean IP Guidelines. The statement is very brief and provides no real guidance as to the legal theory under which horizontal cooperation would be illegal. Note that neither Art. 19 nor the Guidelines on Art. 19 produced by the KFTC elaborate on the high-tech issue. I think it would be appropriate for the KFTC to review Art. 7 of the IP Guidelines in light of the US law (as well as law in other jurisdictions) with particular reference to the work of Carl Shapiro (more detail about the Antitrust/IP guru in a later blog).

Guidelines of reviewing undue exercise of intellectual property rights (KFTC Aug. 2000)

Article 7 Cross-Licensing and Pooling-Arrangement of Intellectual Property Rights

When anti-competitiveness occurs from signing cross-licensing contracts or pooling-arrangement of intellectual property rights between licensors who are in mutually competitive or substitutive relations, provisions under Article 19 (Restrictions on Improper Concerted Acts) shall be applied.

Yep that is it! All one sentence of it! Also there is a problem of scope in that patent settlements and standards setting are not mentioned here. Will definitely have to analyse these points in my Ph.D!